The Dubious Argument For Labeling Dzhokhar Tsarnaev an Enemy Combatant

A handful of Republican legislators, including Rep. Peter King, Sen. John McCain, and Sen. Lindsey Graham, have called for treating Dzhokhar Tsarnaev, who is accused of having bombed the Boston marathon last week along with his now-deceased older brother, as an "enemy combatant." But at this point, it's tough to come up with strong legal justification for doing so.

Last year's Defense Authorization Act says that in order to be legally defined as a combatant, an individual must have either participated in the September 11, 2001 terror attacks or be someone "who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States." 

So far, that doesn't apply to Dzhokhar Tsarnaev. There's some indication that Dzhokhar's older brother, Tamerlan, may have watched what NBC describes as "Islamic extremist videos" on YouTube; playlists suspected to have been created by Tamerlan were found with those videos as well as music videos. But there isn't any evidence yet that the younger brother was an actual member of Al Qaeda or an associated group that is at war with the United States. 

And that's what the law requires in order to detain someone under enemy combatant status — not merely having seen some videos, or working in concert with an older brother who saw some vidoes, but evidence that an individual is a working member of Al Qaeda or affiliated organization. 

Sen. Lindsey Graham seems to recognize that the evidence is not sufficient yet. However, he wants to hold Dzhokhar Tsarnaev as an enemy combatant anyway — not because we already have evidence that Dzhokhar was acting as part of Al Qaeda, but because it's possible that eventually authorities might find some. According to The New York Times, the South Carolina senator "said 30 days of confinement and interrogation as an enemy combatant would be an appropriate amount of time to allow the government to look for evidence that would justify his continued detention under the law of war." 

This worrying argument all but defeats the purpose of having a legal standard for the enemy combatant designation. Sure, Sen. Graham seems to be saying, we don't have legal justification for treating Dzhokhar Tsarnaev as an enemy combatant. But if we treat him as one for long enough, law enforcement might eventually come across evidence that could prove that he is a viable candidate for the combatant designation. That's backwards. If the combatant designation is to have any useful meaning at all, it needs to be used only on individuals who already meet the legal standard, not people who Lindsey Graham thinks might eventually meet that standard sometime in the future, after already having been designated a combatant. 

As Jacob Sullum has repeatedly pointed out, there are serious longstanding problems with the way that enemy combatant status has been used by federal authorities.